In which a President fails to fulfill his constitutional duty to “take care that the laws be faithfully executed.” And a reluctant Congress acts.
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June/july 1984
13 years ago By admin
Volume35Issue4
The Watergate crisis had begun in June 1972 as a “third-rate burglary” of the Democratic National Committee headquarters in Washington’s Watergate building complex. By late March 1973 the burglary and subsequent efforts to obstruct its investigation had been laid at the door of the White House. By late June, Americans were asking themselves whether their President had or had not ordered the payment of “hush money” to silence a Watergate burglar. Investigated by a special Senate committee headed by Sam Ervin of North Carolina, the scandal continued to deepen and ramify during the summer of 1973. By March 1974 the third-rate burglary of 1972 had grown into an unprecedented constitutional crisis.
By then it was clear beyond doubt that President Richard M. Nixon stood at the center of a junto of henchmen without parallel in our history. One of Nixon’s attorneys general, John Mitchell, was indicted for obstructing justice in Washington and for impeding a Securities and Exchange Commission investigation in New York. Another, Richard Kleindienst, had criminally misled the Senate Judiciary Committee in the President’s interest. The acting director of the Federal Bureau of Investigation, L. Patrick Gray, had burned incriminating White House documents at the behest of a presidential aide. Bob Haldeman, the President’s chief of staff, John Ehrlichman, the President’s chief domestic adviser, and Charles Colson, the President’s special counsel, all had been indicted for obstructing justice in the investigation of the Watergate burglary. John Dean, the President’s legal counsel and chief accuser, had already pleaded guilty to the same charge. Dwight Chapin, the President’s appointments secretary, faced trial for lying to a grand jury about political sabotage carried out during the 1972 elections. Ehrlichman and two other White House aides were under indictment for conspiring to break into a psychiatrist’s office and steal confidential information about one of his former patients, Daniel Ellsberg. By March 1974 some twenty-eight presidential aides or election officials had been indicted for crimes carried out in the President’s interest. Never before in American history had a President so signally failed to fulfill his constitutional duty to “take care that the laws be faithfully executed.”
It also had been clear for many months that the thirty-seventh President of the United States did not feel bound by his constitutional duties. He insisted that the requirements of national security, as he and he alone saw fit to define it, released him from the most fundamental legal and constitutional constraints. In the name of “national security,” the President had created a secret band of private detectives, paid with private funds, to carry out political espionage at the urging of the White House. In the name of “national security,” the President had approved the warrantless wiretapping of news reporters. In the name of “national security,” he had approved a secret plan for massive, illegal surveillance of American citizens. He had encouraged his aides’ efforts to use the Internal Revenue Service to harass political “enemies”—prominent Americans who endangered “national security” by publicly criticizing the President’s Vietnam War policies.
The framers of the Constitution had provided one and only one remedy for such lawless abuse of power: impeachment in the House of Representatives and trial in the Senate for “high Crimes and Misdemeanors.” There was absolutely no alternative. If Congress had not held President Nixon accountable for lawless conduct of his office, then Congress would have condoned a lawless Presidency. If Congress had not struck from the President’s hands the despot’s cudgel of “national security,” then Congress would have condoned a despotic Presidency.
Looking through the back issues of The New York Times , I recollected in a flood of ten-year-old memories what it was that had filled me with such foreboding. It was the reluctance of Congress to act. I felt anew my fury when members of Congress pretended that nobody really cared about Watergate except the “media” and the “Nixon-haters.” The real folks “back home,” they said, cared only about inflation and the gasoline shortage. I remembered the exasperating actions of leading Democrats, such as a certain Senate leader who went around telling the country that President Nixon could not be impeached because in America a person was presumed innocent until proven guilty. Surely the senator knew that impeachment was not a verdict of guilt but a formal accusation made in the House leading to trial in the Senate. Why was he muddying the waters, I wondered, if not to protect the President?
It had taken one of the most outrageous episodes in the history of the Presidency to compel Congress to make even a pretense of action.
Back on July 16, 1973, a former White House aide named Alexander Butterfield had told the Ervin committee that President Nixon secretly tape-recorded his most intimate political conversations. On two solemn occasions that spring the President had sworn to the American people that he knew nothing of the Watergate cover-up until his counsel John Dean had told him about it on March 21, 1973. From that day forward, Nixon had said, “I began intensive new inquiries into this whole matter. ” Now we learned that the President had kept evidence secret that would exonerate him completely—if he were telling the truth. Worse yet, he wanted it kept secret. Before Butterfield had revealed the existence of the tapes, the President had grandly announced that “executive privilege will not be invoked as to any testimony [by my aides] con- cerning possible criminal conduct, in the matters under investigation. I want the public to learn the truth about Watergate. …” After the existence of the tapes was revealed, however, the President showed the most ferocious resistance to disclosing the “truth about Watergate.” He now claimed that executive privilege—hitherto a somewhat shadowy presidential prerogative—gave a President “absolute power” to withhold any taped conversation he chose, even those urgently needed in the ongoing criminal investigation then being conducted by a special Watergate prosecutor. Nixon even claimed, through his lawyers, that the judicial branch of the federal government was “absolutely without power to reweigh that choice or to make a different resolution of it. ”
In the U.S. Court of Appeals the special prosecutor, a Harvard Law School professor named Archibald Cox, called the President’s claim “intolerable.” Millions of Americans found it infuriating. The court found it groundless. On October 12, 1973, it ordered the President to surrender nine taped conversations that Cox had been fighting to obtain for nearly three months.
Determined to evade the court order, the President on October 19 announced that he had devised a “compromise.” Instead of handing over the recorded conversations to the court, he would submit only edited summaries. To verify their truthfulness, the President would allow Sen. John Stennis of Mississippi to listen to the tapes. As an independent verifier, the elderly senator was distinguished by his devotion to the President’s own overblown conception of a “strong” Presidency. When Nixon had ordered the secret bombing of Cambodia, he had vouchsafed the fact to Senator Stennis, who thought that concealing the President’s secret war from his fellow senators was a higher duty than preserving the Senate’s constitutional role in the formation of United States foreign policy.
On Saturday afternoon, October 20, I and millions of other Americans sat by our television sets while the special prosecutor explained why he could not accept “what seems to me to be non-compliance with the court’s order. ” Then the President flashed the dagger sheathed within his “compromise.” At 8:31 P.M. television viewers across the country learned that he had fired the special prosecutor; that attorney general Elliot Richardson had resigned rather than issue that order to Cox; that the deputy attorney general, William Ruckelshaus, also had refused to do so and had been fired for refusing; that it was a third acting attorney general who had finally issued the order. With trembling voices, television newscasters reported that the President had abolished the office of special prosecutor and that the FBI was standing guard over its files. Never before in our history had a President, setting law at defiance, made our government seem so tawdry and gimcrack. “It’s like living in a banana republic,” a friend of mine remarked.
Now the question before the country was clear. “Whether ours shall continue to be a government of laws and not of men,” the ex-special prosecutor said that evening, “is now for the Congress and ultimately the American people to decide.”
Within ten days of the “Saturday night massacre,” one million letters and telegrams rained down on Congress, almost every one of them demanding the President’s impeachment. But congressional leaders dragged their feet. The House Judiciary Committee would begin an inquiry into whether to begin an inquiry into possible grounds for recommending impeachment to the House. With the obvious intent, it seemed to me, of waiting until the impeachment fervor had abated, the Democratic-controlled committee would consider whether to consider making a recommendation about making an accusation.
Republicans hoped to avoid upholding the rule of law by persuading the President to resign. This attempt to supply a lawless remedy for lawless power earned Republicans a memorable rebuke from one of the most venerated members of their party: eighty-one-year-old Sen. George Aiken of Vermont. The demand for Nixon’s resignation, he said, “suggests that many prominent Americans, who ought to know better, find the task of holding a President accountable as just too difficult. … To ask the President now to resign and thus relieve Congress of its clear congressional duty amounts to a declaration of incompetence on the part of Congress.”
The system was manifestly not working. But neither was the President’s defense. On national television Nixon bitterly assailed the press for its “outrageous, vicious, distorted” reporting, but the popular outrage convinced him, nonetheless, to surrender the nine tapes to the court. Almost at once the White House tapes began their singular career of encompassing the President’s ruin. On October 31 the White House disclosed that two of the taped conversations were missing, including one between the President and his campaign manager, John Mitchell, which had taken place the day after Nixon returned from a Florida vacation and three days after the Watergate break-in. Three weeks later the tapes dealt Nixon a more potent blow. There was an eighteen-and-a-half-minute gap, the White House announced, in a taped conversation between the President and Haldeman, which had also taken place the day after he returned from Florida. The White House suggested first that the President’s secretary, Rose Mary Woods, had accidentally erased part of the tape while transcribing it. When the loyal Miss Woods could not demonstrate in court how she could have pressed the “erase” button unwittingly for eighteen straight minutes, the White House attributed the gap to “some sinister force.” On January 15, 1974, court-appointed experts provided a more humdrum explanation. The gap had been produced by at least five manual erasures. Someone in the White House had deliberately destroyed evidence that might have proved that President Nixon knew of the Watergate cover-up from the start.
The White House knew how to exploit congressional reluctance. One tactic involved a highly technical but momentous question: What constituted an impeachable offense? On February 21 the staff of the Judiciary Committee had issued a report. Led by two distinguished attorneys, John Doar, a fifty-two-year-old Wisconsin Independent, and Albert Jenner, a sixty-seven-year-old Chicago Republican, the staff had taken the broad view of impeachment for which Hamilton and Madison had contended in the Federalist papers. Despite the constitutional phrase “high Crimes and Misdemeanors,” the staff report had argued that an impeachable offense did not have to be a crime. “Some of the most grievous offenses against our Constitutional form of government may not entail violations of the criminal law. ”
The White House launched a powerful counterattack. At a news conference on February 25, the President contended that only proven criminal misconduct supplied grounds for impeachment. On February 28, the White House drove home his point with a tightly argued legal paper: If a President could be impeached for anything other than a crime of “a very serious nature,” it would expose the Presidency to “political impeachments.”
The argument was plausible. But if Congress accepted it, the Watergate crisis could only end in disaster. Men of great power do not commit crimes. They procure crimes without having to issue incriminating orders. A word to the servile suffices. “Who will free me from this turbulent priest,” asked Henry II, and four of his barons bashed in the skull of Thomas àBecket. The ease with which the powerful can arrange “deniability, ” to use the Watergate catchword, was one reason the criminal standard was so dangerous to liberty. Instead of having to take care that the laws be faithfully executed, a President, under that standard, would only have to take care to insulate himself from the criminal activities of his agents. Moreover, the standard could not reach the most dangerous offenses. There is no crime in the statute books called “attempted tyranny. ”
Yet the White House campaign to narrow the definition of impeachment met with immediate success. In March one of the members of the House of Representatives said that before voting to impeach Nixon, he would “want to know beyond a reasonable doubt that he was directly involved in the commission of a crime.” To impeach the President for the grave abuse of his powers, lawmakers said, would be politically impossible. On the Judiciary Committee itself the senior Republican, Edward Hutchinson of Michigan, disavowed the staff’s view of impeachment and adopted the President’s. Until the final days of the crisis, the criminal definition of impeachment was to hang over the country’s fate like the sword of Damocles.
The criminal standard buttressed the President’s larger thesis: In defending himself he was fighting to protect the “Presidency” from sinister forces trying to “weaken” it. On March 12 the President’s lawyer, James D. St. Clair, sounded this theme when he declared that he did not represent the President “individually” but rather the “office of the Presidency. There was even a National Citizens Committee for Fairness to the Presidency. It was America’s global leadership, Nixon insisted, that made a “strong” Presidency so essential. Regardless of the opinion of some members of the Judiciary Committee, Nixon told a joint session of Congress, he would do nothing that “impairs the ability of the Presidents of the future to make the great decisions that are so essential to this nation and the world.”
I used to listen to statements such as these with deep exasperation. Here was a President daring to tell Congress, in effect, that a lawless Presidency was necessary to America’s safety, while a congressional attempt to reassert the rule of law undermined the nation’s security.
Fortunately for constitutional government, however, Nixon’s conception of a strong Presidency included one prerogative whose exercise was in itself an impeachable offense. Throughout the month of March the President insisted that the need for “confidentiality” allowed him to withhold forty-two tapes that the Judiciary Committee had asked of him. Nixon was claiming the right to limit the constitutional power of Congress to inquire into his impeachment. This was more than Republicans on the committee could afford to tolerate.
“Ambition must be made to counteract ambition,” Madison had written in The Federalist . On April 11 the Judiciary Committee voted 33 to 3 to subpoena the forty-two tapes, the first subpoena ever issued to a President by a committee of the House. Ambition, at last, was counteracting ambition. This set the stage for one of the most lurid moments in the entire Watergate crisis.
As the deadline for compliance drew near, tension began mounting in the country. Comply or defy? Which would the President do? Open defiance was plainly impeachable. Frank compliance was presumably ruinous. On Monday, April 29, the President went on television to give the American people his answer. Seated in the Oval Office with the American flag behind him, President Nixon calmly announced that he was going to make over to the Judiciary Committee—and the public—“edited transcripts” of the subpoenaed tapes. These transcripts “will tell it all,” said the President; there was nothing more that would need to be known for an impeachment inquiry about his conduct. To sharpen the public impression of presidential candor, the transcripts had been distributed among forty-two thick, loose-leaf binders, which were stacked in two-foot-high piles by the President’s desk. As if to warn the public not to trust what the newspapers would say about the transcripts, Nixon accused the media of concocting the Watergate crisis out of “rumor, gossip, innuendo,” of creating a “vague, general impression of massive wrongdoing, implicating everybody, gaining credibility by its endless repetition.”
The next day’s New York Times pronounced the President’s speech “his most powerful Watergate defense since the scandal broke.” By May 1 James Reston, the newspaper’s most eminent columnist, thought the President had “probably gained considerable support in the country. ” For a few days it seemed as though the President had pulled off a coup. Republicans on the Judiciary Committee acted accordingly. On the first of May, 16 of the 17 committee Republicans voted against sending the President a note advising him that self-edited transcripts punctured by hundreds upon hundreds of suspicious “inaudibles” and “unintelligibles” were not in compliance with the committee’s subpoena. The President, it was said, had succeeded in making impeachment look “partisan” and consequently discreditable.
Not even bowdlerized transcripts, however, could nullify the destructive power of those tapes. They revealed a White House steeped in more sordid conniving than Nixon’s worst enemies had imagined. They showed a President advising his aides on how to “stonewall” a grand jury without committing perjury: “You can say, T don’t remember.’ You can say, T can’t recall. I can’t give any answer to that, that I can recall.’ ” They showed a President urging his counsel to make a “complete report” about Watergate but to “make it very incomplete. ” They showed a President eager for vengeance against ordinary election opponents. “I want the most comprehensive notes on all those who tried to do us in. … They are asking for it and they are going to get it.” It showed a President discussing how “national security grounds” might be invoked to justify the Ellsberg burglary should the secret ever come out. “I think we could get by on that, ” replies Nixon’s counsel.
On May 7 Pennsylvania’s Hugh Scott, Senate Republican Minority Leader, pronounced the revelations in the transcript “disgusting, shabby, immoral performances.” Joseph Alsop, who had long been friendly toward the President in his column, compared the atmosphere in the Oval Office to the “back room of a second-rate advertising agency in a suburb of hell.” A week after Nixon’s seeming coup Republicans were once again vainly urging him to resign. On May 9 the House Judiciary Committee staff began presenting to the members its massive accumulation of Watergate material. Since the presentation was made behind closed doors, a suspenseful lull fell over the Watergate battleground.
Over the next two months it was obvious that the Judiciary Committee was growing increasingly impatient with the President, who continued to insist that, even in an impeachment proceeding, the “executive must remain the final arbiter of demands on its confidentiality.” When Nixon refused to comply in any way with a second committee subpoena, the members voted 28 to 10 to warn him that “your refusals in and of themselves might constitute a ground for impeachment. ” The “partisanship” of May 1 had faded by May 30.
On July 7 the Sunday edition of the New York Times made doleful reading. “The official investigations seem beset by semitropical torpor,” the newspaper reported in its weekly news summary. White House attacks on the committee, said the Times , were proving effective in the country. In March, 60 percent of those polled by Gallup wanted the President tried in the Senate for his misdeeds. By June the figure had fallen to 50 percent. The movement for impeachment, said the Times , was losing its momentum. Nixon, it seemed, had worn out the public capacity for righteous indignation.
Then, on July 19, John Doar, the Democrats’ counsel, did what nobody had done before with the enormous, confusing mass of interconnected misdeeds that we labeled “Watergate” for sheer convenience. At a meeting of the Judiciary Committee he compressed the endlessly ramified scandal into a grave and compelling case for impeaching the thirty-seventh President of the United States. He spoke of the President’s “enormous crimes.” He warned the committee that it dare not look indifferently upon the “terrible deed of subverting the Constitution.” He urged the members to consider with favor five broad articles of impeachment, “charges with a grave historic ring,” as the Times said of them.
In a brief statement, Albert Jenner, the Republicans’ counsel, strongly endorsed Doar’s recommendations. The Founding Fathers, he reminded committee members, had established a free country and a free Constitution. It was now the committee’s momentous duty to determine “whether that country and that Constitution are to be preserved.”
How I had yearned for those words during the long, arid months of the “smoking gun” and the “hand in the cookie jar.” Members of the committee must have felt the same way, too, for Jenner’s words were to leave a profound mark on their final deliberations. That I did not know yet, but what I did know was heartening. The grave maxims of liberty, once invoked, instantly took the measure of meanness and effrontery. When the President’s press spokesman, Ron Ziegler, denounced the committee’s proceedings as a “kangaroo court,” a wave of disgust coursed through Congress. The hour of the Founders had arrived.
The final deliberations of the House Judiciary Committee began on the evening of July 24, when Chairman Peter Rodino gaveled the committee to order before some forty-five million television viewers. The committee made a curious spectacle: thirty-eight strangers strung out on a two-tiered dais, a huge piece of furniture as unfamiliar as the faces of its occupants.
Chairman Rodino made the first opening remarks. His public career had been long, unblemished, and thoroughly undistinguished. Now the representative from Newark, New Jersey, linked hands with the Founding Fathers of our government. “For more than two years, there have been serious allegations, by people of good faith and sound intelligence, that the President, Richard M. Nixon, has committed grave and systematic violations of the Constitution.” The framers of our Constitution, said Rodino, had provided an exact measure of a President’s responsibilities. It was by the terms of the President’s oath of office, prescribed in the Constitution, that the framers intended to hold Presidents “accountable and lawful.”
That was to prove the keynote. That evening and over the following days, as each committee member delivered a statement, it became increasingly clear that the broad maxims of constitutional supremacy had taken command of the impeachment inquiry. “We will by this impeachment proceeding be establishing a standard of conduct for the President of the United States which will for all time be a matter of public record,” Caldwell Butler, a conservative Virginia Republican, reminded his conservative constituents. “If we fail to impeach … we will have left condoned and unpunished an abuse of power totally without justification.”
There were still White House loyalists of course; men who kept demanding to see a presidential directive ordering a crime and a documented “tie-in” between Nixon and his henchmen. Set against the great principle of constitutional supremacy, however, this common view was now exposed for what it was: reckless trifling with our ancient liberties. Can the United States permit a President “to escape accountability because he may choose to deal behind closed doors,” asked James Mann, a South Carolina conservative. “Can anyone argue,” asked George Danielson, a California liberal, “that if a President breaches his oath of office, he should not be removed?” In a voice of unforgettable power and richness, Barbara Jordan, a black legislator from Texas, sounded the grand theme of the committee with particular depth of feeling. Once, she said, the Constitution had excluded people of her race, but that evil had been remedied. “My faith in the Constitution is whole, it is complete, it is total and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.”
On July 27 the Judiciary Committee voted 27 to 11 (six Republicans joining all twenty-one Democrats) to impeach Richard Nixon on the grounds that he and his agents had “prevented, obstructed, and impeded the administration of justice” in “violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed.”
On July 29 the Judiciary Committee voted 28 to 10 to impeach Richard Nixon for “violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch. …” Thus, the illegal wiretaps, the sinister White House spies, the attempted use of the 1RS to punish political opponents, the abuse of the CIA, and the break-in at Ellsberg’s psychiatrist’s office—misconduct hitherto deemed too “vague” for impeachment—now became part of a President’s impeachable failure to abide by his constitutional oath to carry out his constitutional duty.
Lastly, on July 30 the Judiciary Committee, hoping to protect some future impeachment inquiry from a repetition of Nixon’s defiance, voted 21 to 17 to impeach him for refusing to comply with the committee’s subpoenas. “This concludes the work of the committee,” Rodino announced at eleven o’clock that night. Armed with the wisdom of the Founders and the authority of America’s republican principles, the committee had cut through the smoke screens, the lies, and the pettifogging that had muddled the Watergate crisis for so many months. It had subjected an imperious Presidency to the rule of fundamental law. It had demonstrated by resounding majorities that holding a President accountable is neither “liberal” nor “conservative,” neither “Democratic” nor “Republican,” but something far more basic to the American republic.
For months the forces of evasion had claimed that impeachment would “tear the country apart.” But now the country was more united than it had been in years. The impeachment inquiry had sounded the chords of deepest patriotism, and Americans responded, it seemed to me, with quiet pride in their country and themselves. On Capitol Hill, congressional leaders reported that Nixon’s impeachment would command three hundred votes at a minimum. The Senate began preparing for the President’s trial. Then, as countless wits remarked, a funny thing happened on the way to the forum.
Back on July 24, the day the Judiciary Committee began its televised deliberations, the Supreme Court had ordered the President to surrender sixty-four taped conversations subpoenaed by the Watergate prosecutor. At the time I had regarded the decision chiefly as an auspicious omen for the evening’s proceedings. Only Richard Nixon knew that the Court had signed his death warrant. On August 5 the President announced that he was making public three tapes that “may further damage my case.” In fact they destroyed what little was left of it. Recorded six days after the Watergate break-in, they showed the President discussing detailed preparations for the cover-up with his chief of staff, Bob Haldeman. They showed the President and his henchman discussing how to use the CIA to block the FBI, which was coming dangerously close to the White House. “You call them in,” says the President. “Good deal,” says his aide. In short, the three tapes proved that the President had told nothing but lies about Watergate for twenty-six months. Every one of Nixon’s ten Judiciary Committee defenders now announced that he favored Nixon’s impeachment.
The President still had one last evasion: on the evening of August 8 he appeared on television to make his last important announcement. “I no longer have a strong enough political base in Congress,” said Nixon, doing his best to imply that the resolution of a great constitutional crisis was mere maneuvering for political advantage. “Therefore, I shall resign the Presidency effective at noon tomorrow. ” He admitted to no wrongdoing. If he had made mistakes of judgment, “they were made in what I believed at the time to be in the best interests of the nation.”
On the morning of August 9 the first President ever to resign from office boarded Air Force One and left town. The “system” had worked. But in the watches of the night, who has not asked himself now and then: How would it all have turned out had there been no White House tapes?